On November 16, 1995 Nunes returned to Wal-Mart to shop and attempted to use her employee discount card. (Nunes depo., p. 66:15-22). The cashier refused the card and Silva was called to discuss the situation with Nunes. (Id.). Silva and another manager explained to Nunes that she had been terminated because she had not submitted a new Request Form, could not be located, and that her position had been filled by a seasonal employee. (Exit interview, defendants' Exh. 27). Nunes was told that she could reapply after the holiday season, but she never did. (Nunes depo., p. 71:14-17; 73:23; 81:16-23).

Plaintiff filed her complaint on September 13, 1996 alleging twelve different causes of action against Wal-Mart, Mike Black, and Rita Silva as follows:

1. Violation of the Americans with Disabilities Act ("ADA");

2. Violation of the Family and Medical Leave Act ("FMLA") and the California Family Rights Act ("CFRA");

4. Negligent Failure to prevent discrimination and harassment in employment;

5. Wrongful termination in violation of public policy;

6. Employment discrimination based on retaliation;

7. Negligent failure to prevent retaliation;

8. Intentional infliction of emotional distress;

9. Negligent infliction of emotional distress;

10. Negligent failure to properly supervise employees;

11. Violation of California constitutional rights;

12. Defamation.

Plaintiff asserts that all of these causes of action arise from, or relate to, her termination from Wal-Mart due to her disability.

This Motion

Defendants filed their motion for summary judgment on August 7, 1997. Their motion asserts that there is no evidence to support any of plaintiff's claims. Defendants believe that all twelve causes of action should be dismissed by this court.

The moving party bears the burden of showing that there is no material factual dispute. Therefore, the court must regard as true the opposing party's evidence, if supported by affidavits or other evidentiary material. Celotex, 477 U.S. at 324. The court must draw all reasonable inferences in favor of the party against whom summary judgment is sought. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986), 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348.

To survive summary judgment under the ADA, a plaintiff must establish by a preponderance of the evidence a prima facie case of disability discrimination by showing:

(1) that he is a disabled person within the meaning of the ADA; (2) that he is qualified, that is, with or without reasonable accommodation he is able to perform the essential functions of the job; and (3) that the employer terminated him because of his disability.

Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996) (court affirmed summary judgment because the former employee was totally disabled and could not have returned to work); citing White v. York Int'l. Corp., 45 F.3d 357, 360-61 (10th Cir. 1995). Wal-Mart has borne its burden of showing that plaintiff cannot adequately establish the elements of a prima facie case of discrimination. Defendants do not dispute that plaintiff was suffering from a recognized disability, regarded as suffering from a disability, and/or possessed a record of disability. It is with regard to the second element of the prima facie case, qualification, that defendants challenge plaintiff's case.

B. Plaintiff's Qualification under the ADA

Wal-Mart claims that Nunes was not a "qualified individual with a disability," and therefore cannot establish the second element of the prima facie case. A "qualified individual with a disability" is defined as "an individual with a disability, who with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires at the time of the employment decision." 42 U.S.C.A. § 12111(8); 29 C.F.R. § 1630.2(m). "Essential functions" are "those functions that the individual must be able to perform unaided or with the assistance of a reasonable accommodation." 29 C.F.R. 1630.2(n). An individual with a disability who needs time off from work may be a qualified individual with a disability if the requested leave would allow the individual to perform the essential functions of her employment when the leave is over. 29 C.F.R. § 1630.2(o). Nunes has not produced adequate evidence to prove that she was a qualified individual able to perform the essential functions of her employment.

1. Plaintiff was not released to return to work prior to her termination.

Nunes was a disabled person within the meaning of that term under the ADA, however, she cannot prove the second element of the prima facie case, qualification. Accordingly, defendants' summary judgment motion under the ADA must be granted as plaintiff cannot establish her prima facie case of discrimination under the ADA.

II. Family Medical Leave Act

Wal-Mart complied with the provisions of the federal Family and Medical Leave Act. Federal law allows eligible employees up to twelve weeks of medical leave for serious health conditions if such a condition renders the employee unable to work. 29 U.S.C. § 2612(a)(1)(D); 29 C.F.R. § 825.112(a)(4). If the employee does not provide a fitness-for-duty certification or a new medical certification for a serious health condition at the time the FMLA leave is concluded, the employer may terminate the employee. 29 C.F.R. § 825.311(c).

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